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jurisprudence: The law, lawyers, and the court.

Supreme SilenceWhy the Supremes will not decide this year's presidential election.

By Dahlia Lithwick
Posted Tuesday, Oct. 26, 2004, at 5:57 PM ET

No encore to Bush v. Gore?

The news of Chief Justice William H. Rehnquist's brush with thyroid cancer has triggered a new little frisson of public interest in the Supreme Court. The connection between elections and the high court has always been there: This election will likely determine the composition of the next court and this Supreme Court determined the outcome of the last election. But we all seemed to have nearly forgotten these things until Rehnquist reminded us of them both.

One week before Election Day, many observers seem to accept as certain that (i) some part of this election will be decided in the courts; and (ii) the Supreme Court will be forced to make the ultimate call. Here, for instance, is James Piereson, in the Weekly Standard, arguing of the proposed Colorado initiative that would allocate electoral votes proportionately, that, "If the amendment passes, and if we have a close national election, the question will almost certainly wind up before the U.S. Supreme Court." Luiza Savage of the New York Sun, speculates that "some suits could eventually be appealed to the Supreme Court," including problems with provisional ballots cast at the incorrect precincts. And here's Ron Rosenbaum's apocalyptic scenario that ends with the Supreme Court hopelessly deadlocked and the swearing-in of a President Hastert.

But don't be so quick to assume that the high court would hear another election appeal. There's little doubt in my mind that each of the 20,000 lawyers poised to jet around the country next week like a small air force of flying monkeys in ties expects to take their appeals all the way to the Supreme Court. But there's also little doubt in my mind that the court will refuse to take them. Let's recall, first of all, that the court has absolute and ultimate control over its own docket. But more profoundly, let's recall that the court has absolute and ultimate control over its own reputation and legitimacy. No one was more shocked than the justices by the angry blowback from Bush v. Gore. And no one is less interested than the justices in replaying that psychodrama again this year, and every four years hereafter.

In a terrific piece in the Washington Post this weekend, Professor Garrett Epps explains why Bush v. Kerry shouldn't happen again next month. The truth, he says, is that Bush v. Gore never needed to happen in the first place. Perfectly adequate political processes were already in place to decide the last election, he argues, and had the court simply butted out, George W. Bush would have been installed by the Florida Legislature—with or without the kindly assistance of the House of Representatives. Ultimately, those entities would have been held accountable to the voters for that result because those entities are accountable to the voters in the first place. The fact that the Supreme Court made itself accountable was a disaster, according to Epps. The fact that a large part of the American public still resents them has not been lost on the justices.

All the reasons offered by Epps to suggest that the court shouldn't take the next election case will ultimately be the reasons it does not. Even the justices themselves are setting the stage for bowing out gracefully from an election conflict next week. Justice Stephen Breyer's supremely weird confession this weekend at Stanford—that he was never truly certain he was being impartial about his vote in Bush v. Gore—doesn't sound like the words of a man itching for a do-over. "I had to ask myself would I vote the same way if the names were reversed," he told the law students. "I said 'yes.' But I'll never know for sure—because people are great self-kidders—if I reached the truthful answer."

But doesn't the Supreme Court have to hear Bush v. Kerry if it comes to them? Isn't there a precedent now? Well, no, you see, that was the glory of Bush v. Gore. It contained that gorgeous little escape hatch, specifically, language stating that: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." By declaring itself and future courts unbound by the logic of Bush v. Gore, the court disavowed its precedential value altogether. While there may be some political precedent for the court to intervene again, there is certainly no legal basis for it. And since no five members of the current court could agree on a real rationale for the holding in Bush v. Gore (the reason they settled for their one-time-only equal-protection theory) there's no reason to believe they could agree again this time. Rather than disintegrating into an even uglier heap of ideological factions, or cobbling together a second one-time-only equal-protection rationale, the court will keep silent, thus preserving for itself the role of Owl this election, as opposed to reprising its role as constitutional Tigger.

In 1831 and 1832 the Supreme Court decided two cases involving the Cherokee Indians, ultimately upholding the rights of the Cherokee nation over the State of Georgia. President Andrew Jackson wanted the Cherokee land, however, and when he heard of the Supreme Court's ruling he is said to have replied, "John Marshall has made his decision, now let him enforce it." We have come a long way since then. We sometimes forget that the Supreme Court has no power at all to enforce its decisions; that the court has "neither the power of the sword nor the power of the purse." Court decisions are largely enforced by collective agreement, because the public believes them to be legitimate.

The five majority justices from Bush v. Gore may love George W. Bush beyond reason. But the one thing they love more is the court. The difference between recklessly deciding one election in 2000 and deciding every election that follows it will mean the difference between a one-time dip in national legitimacy and irredeemable national disdain.